Veteranclaims’s Blog

February 15, 2011

Single Judge Application Shade v. Shinseki, 24 Vet.App.; Reopen Claim

Filed under: Reopen claim, Shade v. Shinseki — Tags: — veteranclaims @ 6:39 pm

Excerpt from Decision Below:

Nor may the Board decline to reopen claims based on newly submitted evidence if such evidence, combined with VA assistance and considering the other evidence of record, would raise a reasonable possibility of substantiating the claims. See Shade v. Shinseki, 24 Vet.App. 110, 117 (2010) (explaining that § 3.156 creates a low threshold for determining whether new evidence creates a reasonable possibility of substantiating a claim) In 2004, the RO denied the claim for entitlement to service connection for GERD on the basis that “the medical evidence of record fails to show the current diagnosis for this condition, the extent to which it maybe disabling, and whether it is related to an in-service condition,” and denied the claim for entitlement to service connection for tinea versicolor on the basis that “the medical evidence of record fails to show that you are currently diagnosed with tinea versicolor or a history of treatment for tinea versicolor from the time
of your separation from service to the present.” R. at 657. Thus, the
Board’s own statement that the new evidence “shows the veteran was treated for tinea versicolor . . . and GERD” indicates that this new evidence does relate to an unestablished fact necessary to substantiate the claim—a current diagnosis of both tinea versicolor and GERD. See 38 C.F.R. § 3.156(a). Because the Board made the favorable determination that the evidence showed a current diagnosis of GERD and tinea versicolor, and the RO explicitly denied the claims, in part, on the basis
that current diagnoses were lacking, and VA assistance might effectuate proof of a medical nexus and chronicity, the Court concludes that the Board clearly erred in determining that the new evidence was immaterial. See 38 U.S.C. §§ 5108, 7261; 38 C.F.R. § 3.156(a); Shade and Gilbert, both supra”

—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1294
WILLIAM L. BROWN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The pro se appellant, William L. Brown, appeals an August
29, 2008,
Board of Veterans’ Appeals (Board) decision that denied his request to
reopen claims of entitlement
to service connection for tinea versicolor1
and gastroesophageal reflux disease (GERD), denied
entitlementto anincreasedevaluation forservice-connectedhypertension
evaluatedat0%disabling,
and dismissed claims of entitlement to an initial ratingin excess of 10%
for service-connected hallux
valgus2
of the left and right foot because the appellant failed to perfect his
appeal.3
Record (R.) at
Tinea versicolor is: “a common, chronic, usually symptomless disorder,
characterized by macular patches of
various sizes and shapes, with colors from white in pigmented skin to tan
or brown in pale skin. . . .” DORLAND’S
ILLUSTRATED MEDICAL DICTIONARY 1956 (31st ed. 2007)[hereinafter “DORLAND’S
“].
Hallux valgus is: “angulation of the great toe away from the midline of
the body, or toward the other toes; the
great toe may ride under or over the other toes.” DORLAND’S at 894.
The Court notes that in the Board’s summary of the issues and introduction,
it incorrectly states one issue as
“[w]hether the appellant has submitted a timely notice of disagreement to
a March 2004 rating decision . . . .” when the
actual issue, as discussed correctly within the Board’s decision, was
whether the Substantive Appeal had been perfected.
R. at 3; see R. at 4-8 (“In this case, the issue is whether the veteran
filed a timely VA Form 9, substantive appeal; if he
did not, the Board does not have jurisdiction.”). The Court concludes the
veteran was not prejudiced by the initial
typographical errors, because, as discussed below, the Board thoroughly
discussed the pertinent issue and made the
correct findings of law and fact as to the issue of whether it had
jurisdiction. See Shinseki v. Sanders, 129 S. Ct. 1696,
1708 (2009) (quoting 38 U.S.C. § 7261(b)(2)).
3
2
1

3-18. The appellant filed an informal brief and a reply brief; the
Secretary filed a brief. This appeal
is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(
a) and 7266(a). A single
judge may conduct this review because the outcome in this case is
controlled by the Court’s
precedents and “is not reasonably debatable.” Frankel v. Derwinski, 1 Vet.
App. 23, 25-26 (1990).
For the following reasons, the Court will affirm in part and vacate in
part the Board’s August 2008
decision, and remand the claims forentitlement to service connection for
GERD and tinea versicolor
and entitlement to a higher disability rating for hypertension.
I. FACTS
Mr. Brown served in the U.S. Navy from December 1989 to December 1993. R.
at 367. In
September 2003, Mr. Brown filed for entitlement to service connection for
hypertension, right hand
disorder, left foot bunion, a skin condition, and gastroenteritis. R. at
931-33. On March 30, 2004,
a VA regional office (RO) issued a decision granting service connection
for hallux valgus of the left
and right foot, each at 10% disabling, hypertension at 0% disabling, and
denying service connection
for contracture of the right 5th finger, GERD, and tinea versicolor. R. at
653-58. In May 2004, Mr.
Brown filed a Notice of Disagreement (NOD) and requested a Statement of
the Case (SOC). R. at
645. On July 23, 2004, VA acknowledged receipt of Mr. Brown’s NOD and
provided an SOC. R.
at 615-37. There is no indication in the record that Mr. Brown perfected
his Substantive Appeal to
the Board.
In November 2004, Mr. Brown underwent a VA compensation and pension
hypertension
examination. R. at 593-94. In July 2005, Mr. Brown filed a statement in
support of claim,
requesting VA reopen his claims for a skin condition, hypertension, and
acid reflux based on new
and material evidence. R. at 576-77. On September 26, 2005, VA sent Mr.
Brown a notice letter,
explaining that they were working on his application for an increase in
service-connected
compensationforhypertension andentitlementto
serviceconnectionforGERDandtineaversicolor.
R. at 483-88. In January 2006, Mr. Brown underwent another VA compensation
and pension
hypertension examination. R. at 475-81. A February2, 2006, RO decision
continued the evaluation
of hypertension at 10% disabling and determined that new and material
evidence had not been
submitted to reopen the claims for entitlement to service connection for
GERD and tinea versicolor.
2

R. at 516-19. In March 2006, Mr. Brown filed an NOD as to the denial of a
rating in excess of 10%
for his hypertension and entitlement to service connection for tinea
versicolor and GERD. R. at 468-
69.
In a May 2006 statement in support of claim, Mr. Brown asserted
entitlement to service
connection for pseudofolliculitis barbae.4
R. at 435. On August 14, 2006, the RO denied service
connection for pseudofolliculitis barbae after Mr. Brown failed to appear
for a scheduled VA
examination. R. at 396-97.
In October 2006, Mr. Brown filed an NOD as to the August 14, 2006,
February 2, 2006, and
March 30, 2004, RO decisions. R. at 337-62. In January2007, the RO issued
an SOC as to the issue
of the expiration of the appeal period for the March 30, 2004, RO decision.
R. at 210-18. In
December 2006, Mr. Brown underwent a VA compensation and pension skin
examination. R. at
293-94. He was diagnosed with pseudofolliculitis barbae, acne keloidalis
nuchae, and tinea
versicolor (noted as currently quiescent, but with summertime
exacerbations). R. at 293-94. In
October 2006, Mr. Brown perfected his Substantive Appeal to the Board. R.
at 306-31.
In January 2007, the RO granted entitlement to service connection for
pseudofolliculitis
barbae at 10% disabling, effective May 15, 2006. R. at 219-25. The
appellant subsequently filed
several VA forms asserting various contentions. In turn, the RO issued
several Supplemental
Statements of the Case (SSOC). On January 1, 2008, the Board certified the
appeal as to reopening
the claims for service connection for tinea versicolor and GERD based on
new and material
evidence, an increased rating for hypertension, and the issue of the
expiration of the appeal period
for the March 30, 2004, RO decision. R. at 27. On January 4, 2008, the
appellant underwent a VA
examination for hypertension. R. at 65-70. The 2008 examiner opined ”
evaluation for underlying
conditions of kidney disease not found after laboratory evaluation
accomplished with lab as copied
showing normal renal function,” and that there was no clinical evidence to
support the diagnosis of
valvular disease. R. at 68. Later that month, the RO issued an SSOC that
maintained the rating
evaluation of 0% for hypertension, determined new and material evidence
had not been submitted
to reopen the claims for service connection for tinea versicolor and GERD,
and found that the time
4
Pseudofolliculitis barbae is popularly known as razor bumps. DORLAND’S at
1565.
3

period for submitting a formal appeal for the March 30, 2004, RO decision
had expired. R. at 62-64.
On August 29, 2008, the Board issued the decision here on appeal.
II. ANALYSIS
A. The Hallux Valgus, Tinea Versicolor, and GERD Claims
The appellant argues that the evidence of record reveals he timely
appealed the March 2004
RO decision. See Appellant’s Informal (App.) Brief (Br.) at 13-17. The
Secretary counters that the
Board did not clearly err in making the determination that the appellant
failed to file a Substantive
Appeal after the RO issued a July 2004 SOC. Secretary’s Br. at 10-13. To
clarify further, the Board
and both parties agree that the appellant filed a timely NOD as to the
March 2004 RO decision. See
R. at 7; App. Br. at 13-14; Secretary’s Br. at 10. However, the crux of
the issue is whether the
appellant perfected his Substantive Appeal. See Jarrell v. Nicholson, 20
Vet.App. 326, 331 (2006)
(en banc) (“The request for appellate review by the Board is initiated by
filing an NOD and is
completed by filing a Substantive Appeal.”). The RO explained in a January
2007 SOC that the
appeal period for its March 2004 decision had expired. R. at 210-18.
Further, the evidence of
record, as well as the appellant’s recital of the evidence (see App. Br.
at 13-14), does not indicate that
the appellant perfected his appeal of the March 2004 RO decision to the
Board within the requisite
time period. See 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 20.302(b)(1) (2010).
Should the Board determine that VA has closed the appeal for failure to
file a timely
Substantive Appeal,”the Board may decline to exercise jurisdiction over
the appeal as a prudential
matter.” Percy v. Shinseki, 23 Vet.App. 37, 46 (2009). Further, it is the
Board’s province to
determine whether the appellant timely perfected his appeal. See 38 U.S.C.
§ 7105(d)(3) (“The
[RO] may close the case for failure to respond after receipt of the [SOC],
but questions as to
timeliness or adequacy of response shall be determined by the Board
. . . .”). Thus, based on the
evidence of record, the Court cannot conclude that the Board clearly erred
in determining that the
appeal as to the March 2004 RO decision was not perfected, that it did not
have jurisdiction over the
claims of an initial rating in excess of 10% for service-connected hallux
valgus of the left and right
feet, and that the initial issue as to the claims of entitlement to
service connection for tinea versicolor
and GERD was whether new and material had been presented to reopen. See 38
U.S.C. § 5108;
4

United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); Gilbert v.
Derwinski, 1 Vet.App. 49,
52 (1990); R. at 7-8. The Board’s determination that it did not have
jurisdiction over the hallux
valgus claims is affirmed.
However, the Secretaryconcedes that the Board’s 2008 decision should be
remanded in part,
because the Board failed to provide an adequate statement of reasons or
bases to support its finding
that new and material evidence had not been submitted to reopen the claims
for tinea versicolor and
GERD. Secretary’s Br. at 14-18. On further review, it is evident that the
Board’s determination
involves more than an inadequate statement of reasons or bases.
“If new and material evidence is presented or secured with respect to a
claim which has been
disallowed, the Secretary shall reopen the claim and review the former
disposition of the claim.”
38 U.S.C. § 5108. “New” evidence means existing evidence not previously
submitted to Agency
decisionmakers. 38 C.F.R. § 3.156(a) (2010). “Material evidence means
existing evidence that, by
itself or whenconsideredwith previous evidence of record, relates to an
unestablished fact necessary
to substantiate the claim.” Id. Such evidence “can be neither cumulative
nor redundant of the
evidence of record at the time of the last prior final denial of the claim
sought to be reopened, and
must raise a reasonable possibility of substantiating the claim.” Id. The
Court reviews whether an
appellant has submitted new and material evidence to reopen a previously
denied claim under the
“clearlyerroneous”standardofreview,where,ashere,thenew-and-material-
evidencedetermination
is “‘fact intensive’ and . . . requires ‘the weighing of conflicting
evidence and testimony.'” Suaviso
v. Nicholson, 19 Vet.App. 532, 533 (2006) (quoting Prillaman v. Principi,
346 F.3d 1362, 1367
(Fed. Cir. 2003)); see 38 U.S.C. § 7261(a)(4); Elkins v. West, 12 Vet.App.
209, 217 (1999) (en banc)
(“[W]e hold that new-and-material-evidence determinations will now
generally be reviewed under
a deferential standard and that the standard will ordinarily be the
‘clearly erroneous’ standard.”);
Gilbert, supra.
In this case, the Board found the submitted evidence to be “new,” but
stated:
[T]he Board finds that this evidence is not material. The submitted
evidence merely
shows that the veteran was treated for tinea versicolor beginning in 2005,
and GERD
beginning in 2006. This is at least 12 years after separation from service,
and none
of the medical evidence contains competent evidence to show that the
veteran has
tinea versicolor, or GERD, that is related to his service. The Board
therefore finds
that the submitted evidence does not raise a reasonable possibility of
substantiating
5

the claims.
R. at 11. This analysis is primarily flawed because it indicates the Board
failed to take into account
the RO’s 2004 final denial of these two claims. The Board may not refuse
to reopen a claim on a
different basis than the one on which the claim was originally denied. See
Molloy v. Brown,
9 Vet.App. 513, 516 (1996) (concluding that “where evidence supports
service incurrence of an
injury, the Board may not, on the one hand, deny the claim for lack of
medical evidence and later, when medical evidence is submitted, refuse to reopen the claim due to the lack of evidence of service incurrence.”). Nor may the Board decline to reopen claims based on newly submitted evidence if such evidence, combined with VA assistance and considering the other evidence of record, would raise a reasonable possibility of substantiating the claims. See Shade v. Shinseki, 24 Vet.App. 110, 117 (2010) (explaining that § 3.156 creates a low threshold for determining whether new evidence creates a reasonable possibility of substantiating a claim) In 2004, the RO denied the claim for entitlement to service connection for GERD on the basis that “the medical evidence of record fails to show the current diagnosis for this condition, the extent to which it maybe disabling, and whether it is related to an in-service condition,” and denied the claim for entitlement to service connection for tinea versicolor on the basis that “the medical evidence of record fails to show that you are currently diagnosed with tinea versicolor or a history of treatment for tinea versicolor from the time
of your separation from service to the present.” R. at 657. Thus, the
Board’s own statement that the new evidence “shows the veteran was treated for tinea versicolor . . . and GERD” indicates that this new evidence does relate to an unestablished fact necessary to substantiate the claim—a current diagnosis of both tinea versicolor and GERD. See 38 C.F.R. § 3.156(a). Because the Board made the favorable determination that the evidence showed a current diagnosis of GERD and tinea versicolor, and the RO explicitly denied the claims, in part, on the basis
that current diagnoses were lacking, and VA assistance might effectuate proof of a medical nexus and chronicity, the Court concludes that the Board clearly erred in determining that the new evidence was immaterial. See 38 U.S.C. §§ 5108, 7261; 38 C.F.R. § 3.156(a); Shade and Gilbert, both supra. Because the new evidence is material, the claims for tinea versicolor and GERD must be remanded for further development and readjudication. See Molloy, 9 Vet.App. at 517. The appellant is free to submit additional evidence and raise his arguments to the Board on remand; and the Board is required to
6

consider them as it provides expeditious treatment of this matter. See 38
U.S.C. § 7112; Kay v.
Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App.
369, 372 (1999) (per
curiam order); see also Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per
curiam order) (explaining
“if the proper remedyis a remand, there is no need to analyze and discuss
all the other claimed errors
that would result in a remedy no broader than a remand”).
B. The Hypertension Claim
The appellant argues that the Board clearly erred in determining he was
not entitled to a compensable disability rating for his service-connected hypertension. See App. Br. at 24-26. Under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 (2010), hypertensive vascular disease is given a 10% disability rating if diastolic pressure is predominantly 100 or more, or systolic pressure is
predominantly 160 or more. As a reminder to both parties and the Board:
when blood pressure (BP) readings are written as a fraction, the systolic pressure comes before the diastolic pressure. See WEBSTER’S MEDICAL DESK DICTIONARY 80-81 (1986).
The appellant does not cite to evidence that indicates the Board clearly
erred in its determination that “the medical evidence does not show that the veteran
predominantly has had a diastolic pressure of 100 or more, or a systolic pressure of 160 or more.” R. at 13-14 (emphasis added); see App. Br. at 24-25 (listing five separate BP readings over the course of two years that show a diastolic pressure of less than 100 and systolic pressure of less than 160, and listing the readings from a 2008 VA examination in which the average systolic pressure was greater than 160).
However, the Board failed to provide the appellant with an accurately worded analysis of the evidence, transposing the words diastolic and systolic when stating that: “VA progress notes, dated between July 2004 and 2007, contain 24 blood pressure readings, in which the diastolic readings ranged from 112-168, and the systolic readings ranged from 55 to 100.” R. at 13. Upon review of the record, it is clear that the BP readings showed systolic readings of 112-168, and diastolic
readings of 55-100. See R. at 97-98 (December 2006 BP reading of 140/100),
103 (April 2007 BP reading of 112/70), 229-33 (December 2006 BP readings of 150/82, 144/86); 235-38 (May 2006 BP readings of 146/61, 131/55); 241-44 (January 2006 BP readings of 151/89, 150/90, 150/81), 246 (October 2005 BP reading of 168/92 listed on December report), 250 (March 2005 BP reading of 131/84, June 2005 BP reading of 156/84), 255 (March 2005 BP reading of 130/100), 260-61
7

(December 2004 BP readings of 152/88, 140/96), 262 (November 2004 BP
reading of 128/80), 263-64 (October 2004 BP readings of 146/86, 128/79), 266-73 (September 2004 BP readings of 142/89, 149/79, 153/85, 133/80). One such transcription might be easily explained, but the Board further states that there were only “two systolic readings of 100” in March 2005 and December 2006. R. at 13. In March 2005 and December 2006 there were only two diastolic readings of 100. R. at 97-98, 255.
The Board is required to provide a written statement of the reasons or
bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Gilbert v.
Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide
the reasons for its rejection of any material evidence favorable to the
claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gabrielson v. Brown,7 Vet.App.36,39-40 (1994); Gilbert, supra. Based on the Board’s analysis, the Court cannot conclude that the Board’s statement was adequate to enable the claimant to understand the precise basis for its decision to deny an increased rating for service-connected hypertension. Allday, supra.
Nor did the Board’s analysis facilitate review in this Court. Id. On remand, the Board is required to provide a concise and accurate rationale for its determination as to the claim for a compensable rating for hypertension.

III. Pseudofolloculitis Barbae and Other Claims
The appellant appears to argue that the Board clearly erred in not
granting a 60% disability rating for his service-connected pseudofolloculitis barbae. See App. Br. at 19. However, a letter from the VA Deputy Chief Chairman filed with this Court on April 14, 2009, states that the appellant’s contentions regarding his pseudofolliculitis barbae claim “will be the subject of a supplemental [Board] decision.” There is no indication in the record that
such a supplemental
decision has been issued. Because there is no evidence that a final
determination was made by the
Board in regard to this particular claim, the Court cannot conclusively
determine it has jurisdiction.
8

If the Board has failed to provide a supplemental decision at the time of
this decision, it is urged to
do so expeditiously. If the Board has issued a supplemental decision and
the appellant disagrees
with it, the appellant must follow the Rules of Practice and Procedure of
this Court to seek relief.
See U.S. VET. APP. R. 3.
The appellant argues a broad array of additional issues on appeal. However,
only the claims and issues that were properly before the Board when it made its August 29, 2008, decision are under review before this Court. See Jarrell, supra. There is no evidence that the appellant’s arguments that he should be service connected (either directly or indirectly) for contracture of the right 5th finger,
tender bladder, back pain,hepatitis C, “PUD,”Helicobactor gastritis,
Abnormal stomach lymphoma, ulcer, chronic allergic rhinitis, acute sinusitis, “HTN,” bronchitis, sinus tachycardia, poor lung inspiration, broken bones, joints, other deformities, foot trouble, difficulties due to foot surgery, and
hearing loss, were matters that were subject to any RO decision appealed
to the Board. See App. Br. at 34. Thus, they are outside the Court’s jurisdiction at this time. See 38 U.S.C. § 7105(a); Tyrues v. Shinseki, 23 Vet.App. 166, 178 (2009) (“[T]his Court’s jurisdiction is
controlled by whether the
Board issued a ‘final decision’-i.e., denied relief by either denying a
claim or a specific theory in
support of a claim and provided the claimant with notice of appellate
rights.”); Velez v. West, 11
Vet.App. 148, 158 (1998) (explaining that, when the Court can find no
jurisdiction-conferring NOD
in the record as to the RO’s failure to adjudicate a secondary-service-
connection claim, such a claim is not properly before the Court); see also Brokowski v. Shinseki, 23 Vet. App. 79, 88-89 (2009) (cautioning that language such as “[all disabilities of record] or the indiscriminate inclusion of materials with an application for benefits cannot be used as a pleading device to require the Secretary to conduct an unguided safari . . . to identify all conditions for which the veteran may . . . assert entitlement to a claim for disability compensation”). If the appellant believes that he has reasonably raised these claims to the RO and they remain pending and unadjudicated, he should seek adjudication below at VA. See DiCarlo v. Nicholson, 20 Vet.App. 52, 56 (2006). If he has initiated a timely NOD as to any of these claims and the Secretary has failed to process the claims, “then the claimant can file a petition with this Court challenging the Secretary’s
refusal to act.” Id. at 56-57.
The appellant is cautioned, however, that such a petition must follow this
Court’s Rules of Practice
and Procedure—in particular, Rule 21. See U.S. VET. APP. R. 21 (
requirements include: petition
9

must state precise relief sought, state the facts necessary to understand
the issues presented by the
petition, state reasons why petition should be granted, and include an
appendix of necessary
documents; and the petition may not exceed 20 pages.).
IV. Additional Arguments
The appellant requests reversal and “overall 100% service connection as of
July, 1995 with
interest.” App. Br. at 33-34; see App. Reply Br. at 14. Remand is
generally the appropriate remedy
when the Board has incorrectly applied the law, failed to provide adequate
reasons or bases for its determinations, or where the record is otherwise inadequate. Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (citing Falk v. West, 12 Vet.App. 402 (1999)); see also Tucker v. West, 11 Vet.App. 369, 374 (remanding to permit the Board to make the appropriate required determinations under the correct legal standards). As the above analysis indicates, remand is the proper remedy for the claims of tinea versicolor, GERD, and hypertension.
The appellant also requests that the Secretary be sanctioned for “abuse of
process.” App. Br. at 33. From what the Court can discern of the appellant’s argument, he believes that because VA had “ample opportunity” to resolve his claims prior to this appeal, sanctions are warranted. See id. In order for sanctions to be considered, the conduct at issue must actually have abused the judicial process. See Pousson v. Shinseki, 22 Vet.App. 432, 437 (2009). The merefact that VA did not grant the appellant’s claims prior to his appeal to this Court is not sufficient
reason for sanctions, and this
request must be denied.
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record,
the Board’s August 29, 2008, is VACATED in part, and REMANDED as to the
matters of tinea
versicolor, GERD, and hypertension. The remainder of the Board’s August 29,
2008, decision is
AFFIRMED.
DATED: January 31, 2011
10

Copies to:
William L. Brown
General Counsel (027)
11

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